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Peter Winn, The Protestant Origins of the Anglo-American Right to Privacy

Comment by: Andrew Odlyzko

PLSC 2013

Workshop draft abstract:

In 1606 Attorney General Edward Coke and Chief Justice of the Kings Bench Sir John Popham, at the request of Parliament and the King’s Council, issued an opinion addressing the narrow question of when an ecclesiastical officer was authorized to administer the “oath ex officio” during proceedings at cannon law. They held that, except in very narrow circumstances, the accused in such proceedings could not be compelled to take such an oath and testify against himself. This opinion, representing a clear break from earlier medieval practice where such procedures were common and unexceptionable, is traditionally understood as one of the great landmarks which eventually resulted in the establishment of a right to remain silent, now embodied in the Fifth Amendment of the U.S. Constitution. In this article, I argue that placed in its proper historical context, the Coke & Popham opinion also recognizes an enforceable legal right of privacy—a right of privacy to one’s thoughts. Today, the right to keep one’s thoughts to oneself is so ingrained in our understanding of the world, that it is difficult to imagine how radical this idea was at the time. But in the medieval period, it was taken for granted that the jurisdiction of the authorities extended to the utmost limits of the human mind. Furthermore, at the time Coke and Popham wrote, the most important affairs of the state were ecclesiastical in nature; and prosecution of the crime of heresy was as much a concern of the civil as the religious authorities. Although the holding of the opinion made it more difficult to prosecute heresy, the authors of the opinion were by no means soft on heretics. Furthermore, by limiting the jurisdiction of ecclesiastical authorities, in a country where the King was also the head of the Church, Coke and Popham were also limiting the power of the sovereign state itself. The opinion thus recognized in a very limited way the legal right of an individual to control access to a private sphere beyond the jurisdiction of the sovereign; a development which begins the process of establishing what Brandeis was later to call, the “right to be let alone.” This important step in the law was not driven by utilitarian rationale (nothing could be more effective a means to prosecute heretics than administration of the oath); nor was it compelled by earlier medieval precedents (the authors tortured medieval case law to reach the desired outcome). But in the text of the opinion, itself, one can see what drove Coke and Popham to what at the time was such a counterintuitive result—the remorseless logic of a quintessentially Protestant theology. The authors were concerned that in a panoptic state with the power to intrude into an individual thoughts, the first victim would be the authenticity of individual conscience, which, according to Protestant teaching, was so critically necessary for religious salvation.

Marc Jonathan Blitz: Warranting a Closer Look: When Should the Government Need Probable Cause to Analyze Information It Has Already Acquired?

Comment by: Peter Winn

PLSC 2011

Workshop draft abstract:

As the Supreme Court made clear in United States v. Jacobsen, the fact that government officials may constitutionally seize and hold an item doesn’t mean they have the authority to look inside: “Even when government agents may lawfully seize [] a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.” 466 U.S. 107, 114 (1984). A similar distinction between authority to seize and authority to search arises in other contexts, and Orin Kerr has recently proposed applying a rule like this to Internet communications, arguing that government officials should be “allowed to run off a copy of the data without a warrant but then not actually observe the data until a warrant is obtained.” Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1042 (2010).

However, while government might not be permitted to search what it has seized, courts have been more willing to let law enforcement officials analyze information they have previously acquired in a search (or other information-gathering). A few months ago, for example, the Eighth Circuit Court of Appeals rejected a litigant’s argument that if government needed a warrant to look inside the seized package in Jacobsen, it should also need a warrant to chemically reveal the contents of the blood sample they had taken. See Dodd v. Jones, 623 F.3d 563, 568-69 (8th Cir. 2010). It cited an earlier Ninth Circuit case, United States v. Snyder, that reached a similar conclusion and stated that treating the extraction of blood as one search and the chemical testing of it as another would divide the information-gathering process “into too many separate incidents, each to be given significance for fourth amendment purposes.” U.S. v. Snyder, 852 F.2d 471, 473 (9th Cir. 1988).

This article will argue, however, that in some circumstances, the information gathering process should be divided up in precisely this way for Fourth Amendment purposes – requiring government to get a warrant before analyzing information they have obtained in a permissible warrantless search, or in surveillance that does not count as a search. More specifically, I will consider whether and when (1) government should be required to obtain a warrant to “unscramble” technologically-masked faces in video records, or otherwise apply identification technologies, to archives generated by public video surveillance; (2) to analyze data obtained in Internet searches; and (3) to conduct a chemical analysis of blood, DNA, or other biological samples, as Justice Marshall suggested in his dissent in Skinner v. Railway Executives Labor Association. See 489 U.S. 602, 642 (1989) (Marshall, J., dissenting) (observing that even if requiring a warrant is impractical when the urine samples were taken from railroad workers, “no exigency prevents railroad officials from securing a warrant before chemically testing the samples they obtain.”). Indeed, I argue, changes in the architecture that protects our physical and electronic privacy may increasingly require that warrant or other probable cause protections be moved from the information-acquisition stage to the information-analysis stage and that “analysis warrants” of this kind should (consistent with Justice Marshall’s suggestion in his Skinner dissent) play a key role in courts’ jurisprudence on the special needs and administrative search exceptions to the warrant requirement.

The origin of a legal right to privacy is usually traced to the late 19th Century when an article of the same name appeared in the Harvard Law Review by Charles Warren and Louis Brandeis. The belief that a legal right of privacy did not exist before Warren and Brandeis appears to have led many “originalists” to argue that no such right is to be found in the U.S. Constitution — and that claims by the Court in Griswold that there exists a right of privacy “older than the Bill of Rights,” are anachronistic and absurd. Recently, however, several prominent social historians have traced, beginning in the 16th Century, an increasing appreciation of the value of individual privacy in many different areas of European culture. The increased social importance of privacy is reflected by changes in religious practices, in artistic expression, in understandings of sexuality, in eating habits, in architecture, and in clothing. Paralleling these social developments are legal debates beginning in the early 16th Century, and rulings by common law Courts beginning in the 17th Century, challenging the practice of inquisitorial courts to compel an accused person to testify against himself; the investigational use of torture; and the prosecution of individuals based on heretical or treasonous thoughts. At the same time, judges begin to place increasing limits on the ability of state officials to search private homes for evidence. By the middle of the 18th century, as the concept of a sphere of privacy becomes widely recognized in society, one finds a scholar like Blackstone treating as settled law the idea that “private vices” and “particular modes of belief or unbelief” are beyond the jurisdiction of the magistrate to punish. More generally in Blackstone’s work, one can see the concept of privacy developed as an integral part of his concept of liberty. Blackstone’s concept of liberty in turn bears a surprisingly close relationship to the notion of “ordered liberty,” which was developed in late 20th Century Supreme Court decisions, placing Constitutional limits on the power of the state to intrude into the private lives of individuals.

In 2002, with almost no debate, US courts began using electronic filing systems. Under the earlier paper system, court records were required to be kept public to maintain the accountability of the legal system, but given the difficulty of accessing paper records, most legal files remained “practically obscure,” thus still protecting the privacy of litigants. This accountability/privacy balance was dramatically changed by the shift to electronic court records, subjecting a treasure trove of sensitive information to unintended uses – from wholesale extraction by commercial data-miners to individual mischief by criminals. What is the proper balance between accountability and privacy in an age of electronic judicial information?

The “reasonable expectation of privacy” test, formulated in the 1967 case of Katz v. United States, represents a great touchstone in the law of privacy. Katz is important not only because the test is used to determine when a governmental intrusion constitutes a “search” under the Fourth Amendment; but because the test has also found its way into state common law, statutes and even the laws of other nations.

This article addresses the historical background of the framing of that decision, argues that the credit for the development of the famous test belongs to counsel for Charles Katz, Harvey (now Judge) Schneider, who presented the test for the first time in his oral argument, not in the briefs. The majority opinion’s failure to mention the test is explained by the fact that the law clerk responsible for drafting Justice Stewart’s majority opinion missed the oral argument. The test, of course, was articulated in Justice Harlan’s short concurring opinion – establishing him as not only a great jurist, but someone who knew how to listen. Finally, the article argues that the famous test was intended by Justice Harlan to represent more of an evolutionary modification of the previous trespass standard, not a revolutionary new approach to the law – in fact, exactly how subsequent courts understood and applied the standard.

This paper sets forth an architecture for considering the relevant legal standards for familial searches. Familial searches are searches of a DNA database, using a crime-scene sample profile, that intend to look not for a complete match but rather for partial matches. Using principles of heritability, such partial matches may allow investigators to identify relatives of the perpetrator in cases in which the perpetrator herself is not in the database. California recently adopted governing rules for conducting familial searches, and many states and the federal government are contemplating following suit. This article is a collaboration with Dr. Yun Song (Statistics and Computer Science) and Dr. Montgomery Slatkin (Integrative Biology), both of UC Berkeley, who have calculated a formula for determining the likely results (in terms of number of hits) for various partial match searches. Currently, there is very little legal literature about familial searching (as it is a relatively new idea), and there is virtually no statistical work contemplating the number of profiles likely returned by various levels of searches. Moreover, in the rush to embrace “familial searching,” legal actors overlook the probabilistic sensitivity of various approaches. Dr. Song’s formulas provide a springboard from which to examine important legal questions, such as how close a match ought to be to justify: brief detention (reasonable articulable suspicion); a search warrant or an arrest warrant (probable cause), or perhaps even a subpoena for an evidentiary sample (relevance).